Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 270, 341-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDING
Justices Puryear, Field, and Bourland
K. Field, Justice
Glen Dale Crawford sued Loomis Armored US, LLC, and Loomis
employee Marcel Edward Williams (collectively, the
"Loomis Defendants") for personal injuries
sustained when Crawford's car was struck by an armored
truck driven by Williams. Following a jury trial, the trial
court signed a judgment awarding Crawford both compensatory
and exemplary damages. On appeal, the Loomis Defendants
challenge (1) the trial court's decision to allow
Crawford's medical experts to testify that Crawford's
medical conditions were caused by the accident; (2) the
sufficiency of the evidence supporting the jury's
determination that Crawford's medical conditions were
caused by the accident and, consequently, the sufficiency of
the evidence supporting the jury's award of compensatory
damages; (3) the sufficiency of the evidence supporting the
jury's finding that Williams was grossly negligent; and
(4) and the trial court's decision to admit certain
evidence at trial.
reasons set forth below, we affirm that portion of the
judgment awarding compensatory damages against the Loomis
Defendants, conditioned on Crawford filing a remittitur
reducing by $27, 856.88 the award for medical care expenses
incurred in the past. We reverse that portion of the judgment
finding Williams grossly negligent and awarding exemplary
damages against Williams and render judgment that Crawford
take nothing on this claim.
10, 2012, Crawford was driving his extended-cab pickup truck
on his way home from work when, while stopped at a red light,
he was hit from behind by Williams, driving a Loomis armored
truck. At trial, Crawford presented evidence showing that the
force of the impact caused his vehicle to move into the
intersection, that his seat was thrown backward into the back
cab, and that he struck his head on the rear windshield,
shattering that windshield. When EMS personnel arrived at the
scene, Crawford complained of neck and back pain and was
transported to a nearby hospital. Upon evaluation by
emergency-room personnel, Crawford was diagnosed with
"blunt trauma, concussion" and released from the
hospital the same day. Approximately one month later,
Crawford returned to his work as a dump-truck driver for a
local construction company. However, according to his
employer, Crawford was unable to perform his duties in the
same manner that he had before the accident, and he stopped
working entirely in September 2013.
sued the Loomis Defendants, asserting claims for common-law
negligence and negligence per se against the Loomis
Defendants and a claim for gross negligence against Williams.
Before trial, the Loomis Defendants stipulated that Williams
was negligent, that his negligence proximately caused the
accident, and that he was acting within the course and scope
of employment with Loomis at the time of the accident. As a
result of the stipulation, the only issues remaining at trial
were (1) the amount of damages, if any, that Crawford
sustained as a result of the accident, and (2) whether
Williams was grossly negligent and, if so, the amount of
exemplary damages that should be assessed.
trial, Crawford's evidence included the testimony of
three medical doctors (an orthopedic surgeon, a neurologist,
and a radiologist), all of whom he had designated as expert
witnesses. Each treating doctor described the various
symptoms that Crawford had presented following the accident
(both orthopedic and neurological), the steps taken to assess
Crawford's symptoms, and his ultimate diagnoses. The
doctors also testified that, to a reasonable medical
probability, Crawford's medical conditions were caused by
the May 2012 accident. Crawford further presented the expert
testimony of a vocational economist, who testified that
Crawford's physical impairments rendered him
"totally disabled" and opined as to Crawford's
loss of earning capacity. Finally, Crawford presented the
expert testimony of a certified life-care planner, who
testified to Crawford's future medical needs. The only
witness presented at trial by the Loomis Defendants was
Crawford, through the reading of excerpts from his
conclusion of the trial, the jury was asked to determine the
amount of damages that "would fair[ly] and reasonably
compensate [Crawford] for his injuries, if any, that resulted
from the [accident]." The jury awarded Crawford $840,
914 in various compensatory damages. The jury also found that
Williams was grossly negligent and awarded Crawford $5, 000
in exemplary damages. The trial court later signed a judgment
in accordance with the jury's verdict.
eight issues, the Loomis Defendants challenge (1) the
jury's decision to award any compensatory damages for
Crawford's complained-of injuries; (2) the trial
court's decision to admit certain evidence at trial; and
(3) the jury's finding that Williams was grossly
negligent. We will examine each of these challenges in turn.
Challenges to the Jury's Finding on Causation and Award
of Compensatory Damages
causation in a personal-injury case requires the plaintiff to
prove that the defendant's negligence caused an event and
that the event caused the plaintiff's complained-of
injuries. JLG Trucking LLC v. Garza, 466 S.W.3d 157,
162 (Tex. 2015). "Proving that the event sued upon
caused the plaintiff's alleged injuries is part and
parcel of proving the amount of damages to which the
plaintiff is entitled. The causal nexus between the event
sued upon and the plaintiff's injuries must be shown by
competent evidence." Guevara v. Ferrer, 247
S.W.3d 662, 666 (Tex. 2007) (quoting Morgan v.
Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984)).
Here, because the Loomis Defendants stipulated before trial
that Williams's negligence caused the May 2012 accident,
the sole remaining issues at trial with respect to
Crawford's compensatory damages were whether and to what
extent the May 2012 accident caused Crawford to suffer the
medical conditions for which he sought compensation.
three related issues on appeal, the Loomis Defendants
challenge the jury's decision to award compensatory
damages for Crawford's medical conditions. Specifically,
in issue one, the Loomis Defendants challenge the trial
court's decision to allow Crawford's medical experts
to testify that the medical conditions for which Crawford
sought compensation were caused by the accident. In issues
four and seven, the Loomis Defendants challenge the
sufficiency of the evidence supporting the jury's finding
that Crawford suffered compensable injuries as a result of
the accident and the sufficiency of the evidence supporting
the amount of damages awarded by the jury to Crawford as
compensation for his injuries.
Rule of Evidence 702 provides that "a witness who
qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion
or otherwise if the expert's scientific, technical, or
other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue." Tex. R. Evid. 702. In other words, "[a]n
expert witness may testify regarding 'scientific,
technical, or other specialized' matters if the expert is
qualified and if the expert's opinion is relevant and
based on a reliable foundation." Mack Trucks, Inc.
v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006) (quoting Rule
702 of rules of evidence). Here, the Loomis Defendants do not
assert that Crawford's medical experts were unqualified
to testify as expert witnesses in this case. Rather, the
Loomis Defendants challenge the testimony of all three of
Crawford's medical experts on the ground that their
opinions as to the cause of Crawford's medical conditions
court has broad discretion in deciding whether to admit or
exclude expert testimony. Id. (citing Exxon
Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002)).
As a reviewing court, we will not reverse a trial court's
ruling on the admissibility of expert testimony unless that
discretion is abused. Id. A court abuses its
discretion if it acts without reference to guiding rules and
principles. Cooper Tire & Rubber Co. v. Mendez,
204 S.W.3d 797, 800 (Tex. 2006). A trial court's
"[a]dmission of expert testimony that does not meet the
reliability requirement is an abuse of discretion."
who properly objects to the admission of expert testimony at
trial may also assert on appeal that the expert testimony is
unreliable and therefore legally insufficient to support the
judgment. City of San Antonio v. Pollock, 284 S.W.3d
809, 817 (Tex. 2009); Maritime Overseas Corp. v.
Ellis, 971 S.W.2d 402, 409 (Tex. 1998) ("To
preserve a complaint that scientific evidence is unreliable
and thus, no evidence, a party must object to the evidence
before trial or when the evidence is offered."). This
legal-sufficiency review "encompasses the entire record,
including contrary evidence tending to show the expert is
incompetent or unreliable." Whirlpool Corp. v.
Camacho, 298 S.W.3d 631, 638 (Tex. 2009); see also
City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.
2005) (explaining that no evidence exists if "the court
is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact"). In
addition, expert opinion testimony that is based completely
on mere speculation or that is conclusory on its face will
not support a judgment on appellate review, even when no
objection is made to its admission at trial.
Pollock, 284 S.W.3d at 816.
reliability requirement for expert testimony under Rule 702
focuses on the principles, research, and methodology
underlying an expert's conclusions. Zwahr, 88
S.W.3d at 629. Expert testimony is unreliable if it is not
grounded "'in the methods and procedures of
science' and is no more than 'subjective belief or
unsupported speculation.'" Id. (quoting
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
590 (1993)). In assessing the reliability of a particular
methodology, a court may consider the factors set out in the
Texas Supreme Court's decision in E.I. du Pont de
Numours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.
1995). In addition, when experts rely on
experience, knowledge, and training rather than a particular
methodology to reach their conclusions, a court should assess
reliability by determining whether there is "too great
an analytical gap between the data and the opinion
proffered." Mack Trucks, 206 S.W.3d at 578
(citing Gammill v. Jack Williams Chevrolet,
Inc., 972 S.W.2d 713, 726 (Tex. 1998)). "We are not
required . . . to ignore fatal gaps in an expert's
analysis or assertions that are simply incorrect."
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897,
912 (Tex. 2004).
personal-injury case, the plaintiff must present expert
testimony to establish causation as to any medical conditions
outside the common knowledge and experience of jurors.
See Guevara, 247 S.W.3d at 665. A plaintiff is not
required to show that the defendant's negligent act or
omission was "the sole cause of [his] injury, "
only that it was a "substantial factor in bringing about
the injury." Bustamante v. Ponte, 529 S.W.3d
447, 457 (Tex. 2017). In addition, "a medical causation
expert need not 'disprov[e] or discredit every possible
cause other than the one espoused by him.'"
Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211,
218 (Tex. 2010) (quoting Viterbo v. Dow Chem. Co.,
826 F.2d 420, 424 (5th Cir. 1987)). However, "if
evidence presents 'other plausible causes of the injury
or condition that could be negated, the [proponent of the
testimony] must offer evidence excluding those causes with
reasonable certainty.'" JLG Trucking, 466
S.W.3d at 162 (quoting Transcontinental Ins. Co.,
330 S.W.3d at 218).
these legal principles in mind, we will address the Loomis
Defendants' challenge to each individual medical
Robert Josey, orthopedic surgeon
trial, the trial court considered the Loomis Defendants'
challenge to the reliability of the testimony of Dr. Robert
Josey, one of Crawford's treating
physicians. The Loomis Defendants explained to the
trial court that they anticipated that Crawford would call
Dr. Josey, an orthopedic spine surgeon, to testify and that
Dr. Josey would likely opine that certain conditions suffered
by Crawford in his neck and spine were caused by the May 2012
accident. The Loomis Defendants objected to Dr. Josey's
anticipated expert testimony on the ground that "he has
no reliable scientific basis for such an opinion."
Robinson hearing was conducted outside the presence
of the jury. At the hearing, Dr. Josey testified that he had
conducted two surgeries on Crawford-one in December of 2013
and one in March 2016-to correct injuries that, in his
opinion, were caused by the accident. Dr. Josey explained
that his opinion that the accident had caused Crawford's
condition was based on the fact that Crawford
"didn't really have any complaints and was working
as a functional member of society until he got in the
accident, and he started having significant pain and
neurological symptoms after the accident." Dr. Josey
went on to explain that his opinion on causation was also
based on the results of magnetic resonance imaging (MRI).
According to Dr. Josey, Crawford's MRI, conducted shortly
before his December 2013 surgery, revealed that Crawford had
"right-sided disc herniation at L5-S1." Dr. Josey
considered these MRI findings to be consistent with an
"acute, " meaning "new, " injury.
Josey acknowledged during the Robinson hearing that
disc herniations can develop as a result of degeneration
alone and that it would not be unusual for a man of
Crawford's age to have a lower-back disc
herniation. Dr. Josey also acknowledged that even
prior to the collision, Crawford had a condition known as
"spinal stenosis, " or "tightening around the
nerves, " at the L4-5 area of his spine. However, Dr.
Josey testified that Crawford's pre-existing spinal
stenosis "set the stage for him to become injured in the
car accident" and that the car accident
"exacerbate[d] or [sped] up the process of the spinal
stenosis." At the close of the hearing, the trial court
overruled the Loomis Defendants' objection and allowed
Dr. Josey to testify.
the jury, after testifying to his credentials and experience
in orthopedic medicine, Dr. Josey told the jury that he had
examined Crawford "10 to 12 times" and
"ordered two MRIs over the course of his
treatment." Dr. Josey presented Crawford's December
2013 MRI to the jury and pointed out to the jury the various
places on the MRI that, according to Dr. Josey, evidenced
injuries to Crawford's spine and neck. In part, Dr. Josey
explained that the MRI showed that Crawford was suffering
from a disc herniation in his lower back, L5-S1, and from a
disc herniation in his neck, C6-7. Dr. Josey described
"disc herniation" to the jury as occurring when the
"gel that acts as a shock absorber" between
vertebrae "spits out toward the spine" and
explained that "there [are] many different reasons that
herniation can happen, " often a traumatic event but
sometimes without any apparent explanation. In discussing
Crawford's lower-back disc herniation at L5-S1, the
following exchange took place between Crawford's counsel
and Dr. Josey:
COUNSEL: When-when you look for that explanation, Doctor, do
you look for the original onset of symptoms? Is that
something that you do?
JOSEY: Yes, I think that's pretty important in trying to
figure out what was the source of the problem.
COUNSEL: Okay. And I think you told us that you've got
the cursor where the disc herniation was on Mr. Crawford,
were you able to determine the reasonable medical probability
what the onset of the symptom was for him?
JOSEY: I think-I think the car wreck that was in 2012, was
the source of what I see right there, that disc herniation at
COUNSEL: You base that on-or tell me what you base that on.
JOSEY: I base that on the fact that he was a functional
member of society doing well with minimal to no pain, gets in
a car wreck and now has symptoms that are consistent with an
acute injury that I see on his MRI.
respect to Crawford's cervical disc herniation at C6-7,
Dr. Josey explained that, in his opinion, this herniation was
causing nerve pain in Crawford's arm and was also
"more likely than not" a result of traumatic
injury, as opposed to degeneration. Again, Dr. Josey
explained, "[Crawford] didn't have neck pain prior
to the accident. His head goes through the back window of the
car. That's a lot of trauma to the neck. I think this
probably is a ...